Karnataka High Court
Sri Rajakumar R vs State Of Karnataka on 29 June, 2021
Author: S Vishwajith Shetty
Bench: S.Vishwajith Shetty
CRL.P.3797/2021
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRL.P.No.3797/2021
BETWEEN:
1. SRI RAJAKUMAR.R,
S/O RAJENDRAN.E.,
AGED ABOUT 40 YEARS,
RESIDING AT NO.80, PILLAREDDY LANE,
CHURCH STREET CROSS,
MURUGESH PALYA,
BENGALURU - 560 017.
WORKING AS
PANCHAYAT DEVELOPMENT OFFICER,
HALEMUDIGERE GRAMA PANCHAYAT,
MUDIGERE TALUK,
CHIKKAMAGALURU DISTRICT - 577101.
2. SRI RAVI.K.A.,
S/O K.S.APPANNAGOWDA,
AGED ABOUT 46 YEARS,
RESIDING AT
KUNNAHALLI, HALASE,
MUDIGERE TALUK,
CHIKKAMAGALUR DISTRICT - 577101.
EX-PRESIDENT OF
PANCHAYAT DEVELOPMENT OFFICER
HALEMUDIGERE GRAMA PANCHAYAT,
MUDIGERE TALUK,
CHIKKAMGALURU DISTRICT - 577101 ... PETITIONERS
(BY SRI KUMBAR VASANT FAKEERAPPA, ADV.)
CRL.P.3797/2021
2
AND:
1. STATE OF KARNATAKA
BY MUDIGERE POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. SMT. H.E.SAROJA
W/O MANJUNATH,
AGED ABOUT 59 YEARS,
RESIDING AT SHANTHINAGAR,
HALEMUDIGERE VILLAGE,
MUDIGERE TALUK,
CHIKKAMAGALURU
DISTRICT - 577 101. ... RESPONDENTS
(BY SMT.RASHMI JADHAV, HCGP FOR R1,
MS. ANUROOPA VENKATESH FOR
SRI K.S.DEVAIAH, ADV. FOR R2)
This Criminal Petition is filed under Section 482 Cr.P.C.,
praying to quash the order dated 31.08.2019 passed in
C.C.No.833/2019 by the Principal Civil Judge and JMFC,
Mudigere rejecting the B report submitted by the 1st respondent
police in Cr.No.136/2014 consequently taking cognizance
against the petitioners/accused no.1 and 2 respectively for the
offence P/U/S 448, 427 r/w 149 of IPC.
This petition coming on for Orders, this day, the Court
made the following:
CRL.P.3797/2021
3
ORDER
1. Heard the learned Counsel for the petitioners, learned HCGP for respondent no.1 and the learned Counsel for respondent no.2.
2. Petitioners, who are accused nos.1 & 2 in C.C.No.833/2019 pending before the Prl. Civil Judge & JMFC, Mudigere, have approached this Court with a prayer to set aside the order dated 31.08.2019 passed in the said case, wherein the learned Magistrate has taken cognizance of the alleged offences against the petitioner.
3. Brief facts of the case that would be relevant for the purpose of disposal of this petition are, on the complaint of respondent no.2 herein dated 26.08.2014, the Mudigere Police Station have registered FIR in Crime No.136/2014 for the offences punishable under Sections 143, 447, 448, 427, 149 IPC against the petitioners and five others.
Subsequently, after investigation, the police have filed a 'B' report in the said case. The Trial Court has issued notice to the complainant on the 'B' report and the complainant CRL.P.3797/2021 4 had filed her objections to the said 'B' report. The Trial Court, thereafter, proceeded to record the sworn statement of the complainant and vide impugned order dated 31.08.2019 rejected the 'B' report and has taken cognizance of the offences punishable under Sections 448, 427 read with 149 IPC against the accused persons and issued summons to them. Being aggrieved by the said order, petitioners who are accused nos.1 & 2 in the said case are before this Court.
4. Learned Counsel for the petitioners submits that there is a procedural irregularity in the order passed by the learned Magistrate. He submits that the learned Magistrate without passing any order with regard to the 'B' report filed by the police, has proceeded to record the sworn statement of the complainant which is not permissible in law. He has relied upon the judgment of this Court in the case of DR. RAVIKUMAR VS MRS.
K.M.C.VASANTHA & ANOTHER - ILR 2018 KAR 1725, in support of his case and prays to allow the petition.
CRL.P.3797/2021 55. Per contra, learned Counsel for respondent no.2 submits that the learned Magistrate has considered the 'B' report as well as the sworn statement of the complainant together before passing the impugned order, and therefore, there is no procedural irregularity. She also submits that from the perusal of the sworn statement of the complainant, the learned Magistrate was satisfied that the accused persons are required to be tried for the offences for which cognizance has now been taken. Therefore, there is no procedural irregularity. Accordingly, she prays to dismiss the petition.
6. This Court in Dr. Ravikumar's case (supra) in paragraph 5 has observed as under:
"5. The procedure followed by the learned Magistrate is not in accordance with law. It is well recognized principle of law that, once the police submit 'B' Summary Report and protest petition is filed to the same, irrespective of contents of the protest petition, the court has to examine the contents of 'B' Summary Report so as to ascertain whether the police have done CRL.P.3797/2021 6 investigation in a proper manner or not and if the court is of the opinion that the investigation has not been conducted properly, the court has got some options to be followed, which are,-
i) The court after going through the contents of the investigating papers, filed u/s 173 of Cr.P.C., is of the opinion that the investigation has not been done properly, the court has no jurisdiction to direct the Police to file the charge sheet however, the Court may direct the Police for re or further investigation and submit a report, which power is inherent under section 156(3) of Cr.p.c, but before taking cognizance such exercise has to be done. This my view is supported by the decisions of the Hon'ble Apex Court in a decision reported in AIR 1968 S.C. 117 between Abhinandan Jha and Dinesh Mishra (para 15) and also Full Bench decision of Apex Court reported in (1980) SCC 91 between Kamalapati Trivedi and State of West Bengal (second head note.)
ii) If the court is of the opinion that the material available in the 'B' Summary Report CRL.P.3797/2021 7 makes out a cognizable case against the accused and the same is sufficient to take cognizance, and to issue process, then the court has to record its opinion under Sec.204 of Cr.P.C., and the Court has got power to take cognizance on the contents of 'B' Summary Report and to proceed against the accused, by issuance of process.
iii) If the court is of the opinion that the 'B' Summary Report submitted by the Police has to be rejected, then by expressing its judicious opinion, after applying its mind to the contents of 'B' report, the court has to reject the 'B' Summary Report.
iv) After rejection of the 'B' Summary Report, the court has to look into the private complaint or Protest Petition as the case may be, and contents therein to ascertain whether the allegations made in the Private complaint or in the Protest Petition constitute any cognizable offence, and then it can take cognizance of those offences and thereafter, provide opportunity to the complainant to give Sworn Statement and also record the statements of the witnesses if CRL.P.3797/2021 8 any on the side of the complainant as per the mandate of Sec.200 Cr.P.C.
v) If the court is of the opinion that the materials collected by the police in the report submitted under section 173 of Cr.p.c. are not so sufficient, however, there are sufficient materials which disclose that a cognizable offence has been committed by the accused, the court can still take cognizance of the offence/s under section 190 read with 200 Cr.p.c. on the basis of the original complaint or the protest petition as the case may be. After taking cognizance and recording sworn statement of the complainant and statements of witnesses if any and also looking into the complainant/Protest Petition and contents therein, if the Magistrate is of the opinion that, to ascertain the truth or falsity of the allegations further inquiry is required and he thinks fit to post pone the issue of process he can still direct the investigation under section 202 of Cr.PC., to be made by a Police officer or by such other officer as he thinks fit, to investigate and submit a report, for the purpose of deciding whether or not there is CRL.P.3797/2021 9 sufficient ground for proceeding against the accused. In the above eventuality, care should be taken that, the case shall not be referred to the Police under section 156(3) of Cr.p.c, once the magistrate takes cognizance and starts inquiring into the matter himself.
vi) After taking such report under section 202 of Cr.PC., and looking to the entire materials on record, if the magistrate is of the opinion that there are no grounds to proceed against the accused, then the Magistrate is bound to dismiss the complaint or the Protest Petition u/s.203 of Cr.PC. as the case may be.
vii) If in the opinion of the Magistrate there are sufficient grounds to proceed against the accused, on examination of the allegations made in the Protest Petition or in the complaint, as the case may be and also after perusal of the sworn statement, then he has to record his opinion judiciously, and issue summons to the accused by exercising power u/s.204 of Cr.P.C.
But, none of these procedures have been followed by the learned Magistrate. On CRL.P.3797/2021 10 the other hand, as could be seen from the records, the learned Magistrate even without rejecting the 'B' Summary report and without taking cognizance of the offences, but after going through the contents of the Protest Petition has directly provided opportunity to the complainant to give her sworn statement. On the basis of the contents of the Protest Petition, and after relying upon the contents of the Protest Petition and the sworn statement, the learned Magistrate has rejected the 'B' Summary Report which virtually amounts to putting the horse behind the Cart."
7. The learned Magistrate while passing the impugned order has failed to comply with the requirement of law as laid down by this Court in Dr. Ravikumar's case (supra).
Under the circumstances, the impugned order and the further proceedings thereafter, cannot be sustained.
Accordingly, I proceed to pass the following order:
8. Criminal petition is allowed. The impugned order dated 31.08.2019 passed by the Prl. Civil Judge & JMFC, Mudigere, in C.C.No.833/2019, and the further CRL.P.3797/2021 11 proceedings thereafter, are set aside. The matter is remanded to the learned Magistrate with a direction to follow the procedure as narrated in Dr. Ravikumar's case (supra) and to pass appropriate orders in accordance with law.
Sd/-
JUDGE KK